United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
who is proceeding pro se, alleges that defendants
discriminated against him and harassed him during his
employment at Colonial Inn. Presently before the court is
Defendants' Motion to Dismiss (ECF No. 31). Because
Plaintiff is proceeding pro se, he was advised
pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th
Cir. 1975), that a failure to respond to Defendants'
motion could result in dismissal of his Complaint. Plaintiff
has not filed a response. All pretrial proceedings in this
case were referred to the undersigned pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local
Rule 73.02(B)(2)(g), DSC. This report and recommendation is
entered for review by the district judge.
RULE 41(b) DISMISSAL
file their motion pursuant to Fed.R.Civ.P. 41(b) for
Plaintiff's failure to respond to their discovery
requests and to appear for his deposition. Counsel for
Defendants asserts that he made contact with Plaintiff via
telephone conference and scheduled a meeting to discuss the
issues of the case for April 11, 2018. Buyck Aff. ¶ 3
(Ex to Def. Motion). Plaintiff did not appear for the meeting
nor make additional contact with counsel to reschedule the
meeting. Buyck Aff. ¶ 3. On April 25, 2018, counsel for
Defendants served Plaintiff with discovery requests using the
address Plaintiff provided the court. Buyck Aff. ¶ 4.
Plaintiff has not responded to the discovery requests. Buyck
Aff. ¶ 5. Plaintiff's deposition was noticed for
June 11, 2018, but Plaintiff failed to appear. Buyck Aff.
¶ 6. Thereafter, Defendants filed a Motion to Compel
(ECF No. 30) and the present Motion to Dismiss for Failure to
Prosecute (ECF No. 31). As stated above, a Roseboro
order was entered warning Plaintiff that a failure to respond
to the motion to dismiss could result in dismissal of his
complaint. Plaintiff failed to file a response. Thus, the
court entered a second order allowing Plaintiff an additional
ten days to file a response and warning him that failure to
do so would result in a recommendation that the case be
dismissed for failure to prosecute pursuant to Fed.R.Civ.P.
41(b). Plaintiff has not filed a response.
Federal Rules of Civil Procedure recognize that courts must
have the authority to control litigation before them, and
this authority includes the power to order dismissal of an
action for failure to comply with court orders. Fed.R.Civ.P.
41(b).” Ballard v. Carlson, 882 F.2d 93, 95
(4th Cir.1989). The Fourth Circuit, in Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978), recognizing
that dismissal with prejudice is a harsh sanction which
should not be invoked lightly, set forth four considerations
in determining whether Rule 41(b) dismissal is appropriate:
(1) the degree of personal responsibility on the part of the
plaintiff; (2) the amount of prejudice to the defendant
caused by the delay; (3) the presence or absence of a drawn
out history of deliberately proceeding in a dilatory fashion;
and (4) the effectiveness of sanctions less drastic than
dismissal. Id. at 70.
however, the Fourth Circuit noted that “the four
factors ... are not a rigid four-pronged test.”
Ballard, 882 F.2d at 95. “Here, we think the
Magistrate's explicit warning that a recommendation of
dismissal would result from failure to obey his order is a
critical fact that distinguishes this case from those cited
by appellant. . . . In view of the warning, the district
court had little alternative to dismissal. Any other course
would have placed the credibility of the court in doubt and
invited abuse.” Id. at 95-96.
present case, Plaintiff is proceeding pro se and, thus, is
entirely responsible for his actions. It is solely through
Plaintiff's neglect, and not that of an attorney, that
Plaintiff has failed to prosecute this case. Without
Plaintiff's participation in the discovery process,
Defendants are prejudiced because they are unable to form a
proper defense to this action. Further, Plaintiff has failed
to respond to a motion that specifically requests dismissal
of his claims. As such, the undersigned concludes that
Plaintiff has abandoned his claims against Defendants. No.
other conclusion is reasonable.
reasons discussed above, it is recommended that
Defendants' Motion to Dismiss (ECF No. 31) be granted and